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The Significance of a Marital Separation Agreement

Deciding to separate can be a big step for any couple, and drafting a marital separation agreement is an essential part of that process. Here the family law attorneys at Protokowicz & Rodier explain some of the most frequently asked questions about this type of agreement.

What is a Marital Separation Agreement?

A Marital separation agreement is a legally binding contract that a couple can create when they choose to separate from one another. Typically, this is done in lieu of, or prior to, a divorce, and can help in resolving any confusion about topics like spousal and child support or division of assets while a couple is separated. The agreement must be completed voluntarily by both parties to be considered valid.

What is the difference between a Marital Separation Agreement and a Divorce?

The easiest distinction between the two is that a divorce, once finalized by the court, terminates the marriage permanently. A Marital separation agreement, on the other hand, keeps you and your spouse legally married while ensuring that you both adhere to predetermined rules and responsibilities while apart.

For some couples, especially those who are not certain that divorce is the right option, or who are not emotionally ready to permanently dissolve their marriage, separation may be the better option. Additionally, many couples have extenuating circumstances, like one spouse’s need for insurance or tax benefits, that would make separation a more logical decision.

No matter the reason, it is important to note that separation does not ensure that the proceedings will be faster, less costly or less stressful than divorce. Your attorney can assist you in determining the best route for you and your spouse.

What does a Marital Separation Agreement cover?

While the outcomes differ, in its content, a separation agreement includes many of the same topics that a divorce decree might also include. For example:

  • A separation agreement decides who will retain the use and ownership of the family home(s)
  • This will determine how the routine expenses are handled and/or divided during the separation period. i.e. who will cover mortgage/rent, cost of utilities etc.
  • The agreement defines the division of any assets which were acquired during the marriage. This could include anything from cars, retirement accounts, and properties to debts and business interests.
  • The agreement will also cover spousal support. In marriages longer than 10 years, the goal of this alimony is to allow both parties to continue living a similar lifestyle to that which they lived before the separation or divorce. This agreement will consider all source of income. It will also determine if any benefits, such as insurance, will continue during the separation.
  • Child Support. If there are children involved, the separation agreement will allow you and your spouse to decide financial support, division of custody and visitation rights of each parent.

In most cases, this agreement will also determine the extent to which these terms will hold true if the legal separation is later pursued as a divorce.

What if I want to change the agreement?

While it is legally binding, the Marital separation agreement is simply a contract between two parties. As such, if both parties can agree to the changes, the agreement can be amended. Additionally, a court has the power to order changes to the agreement if they deem the situation critical enough to warrant it.

What if we choose to get divorced after our separation?

In many cases the separation agreement will often be included in the terms of divorce. However, once that happens and the divorce is finalized, you no longer have the option to update the ‘contract’ as discussed above, so it is essential that you and your lawyer review the terms to determine that they are still favorable and fair before proceeding with your divorce.

If you and your spouse are considering a legal separation, drafting a Marital separation agreement is the best way to ensure that both parties are protected during the process. For more information on this process or assistance drafting your agreement, please contact the family law attorneys at Protokowicz & Rodier online or by phone at 410.803.1839 to schedule your consultation today.